The Motion of cross-complainants Label Specialties, Inc. and Rossi/Jack’son, Inc. for sanctions against cross-defendants Bret T. Wetterhus and L. Thomas Wetterhus under Code Civ. Proc. Sections 128.7 and 1008 is DENIED.

Cross-Defendants’ request for sanctions is denied.

By presenting a pleading to the court, an attorney or unrepresented party is certifying that, to the best of the person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances that all of the following conditions are met: (1) it is not being presented primarily for an improper purpose; (2) the claims, defenses, or other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support, or if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. Code Civ. Proc. Section 128.7(b).

If a pleading does not meet those conditions, a party may bring a motion for sanctions. Code Civ. Proc. Section 128.7(c)(1). Notice of the motion shall be served as provided in Code Civ. Proc. Section 1010 but shall not be filed with the court unless, within 21 days after service of the motion, the challenged pleading is not withdrawn or appropriately corrected. Id. At the time of such service, the motion must set forth the hearing date. Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal. App. 4th535, 538. There is no requirement that the motion be served again upon filing with the court. Code Civ. Proc. Section 128.7(c)(1).

The safe harbor period is critical. The statute is designed to be remedial, not punitive, so the safe harbor gives the offending party an opportunity to avoid sanctions by withdrawing the questionable pleading without penalty. Martorana v. Marlin Saltzman (2009) 175 Cal. App. 4th 685, 699. As a consequence, where the sanctions motion is served on the offending party after the questionable pleading has been ruled on or dismissed, sanctions are not available because the offending party had no opportunity to withdraw the questionable pleading. Barnes v. Dept. of Corrections (1999) 74 Cal. App. 4th 126, 135; Goodstone v. Southwest Airlines Co. (1998) 63 Cal. App. 4th 406, 423-24. Sending letters, but no motion for sanctions, prior to that time is not sufficient. Cromwell v. Cummings (1998) 65 Cal. App. 4th Supp. 10, 13-15. Indeed, where the sanctions motion is served before the questionable pleading is ruled on but not 21 days before, the party moving for sanctions must seek to have the hearing on the questionable pleading continued to permit for a full 21-day safe harbor period or ask the court in advance to shorten the 21-day safe harbor period. Li v. Majestic Industry Hills, LLC (2009) 177 Cal. App. 4th 585, 592-95 (reversing award of sanctions under 128.7 where questionable pleading was ruled on 19 days after sanctions motion was served and party moving for sanctions had not obtained order shortening time as to safe harbor period).

Here, Cross-Complainants did not serve their sanctions motion on Cross-Defendants until after Cross-Defendants’ questionable motion for reconsideration had been denied by the court. Cross-Defendants were therefore not provided with the safe harbor period required under Code Civ. Proc. Section 128.7(c).

Cross-Complainants argue that the timing of the filing of the sanctions motion permitted Cross-Defendants 21 days to pay a reduced amount (Cross-Complainants’ fees for opposing the questionable motion for reconsideration rather than the full amount of $20, 198.50 sought in the sanctions motion). This is not the safe harbor required by section 128.7. Cross-Defendants had to be given a safe harbor to withdraw the motion for reconsideration and avoid any penalty rather than an opportunity to pay less of a penalty. Martorana v. Marlin Saltzman, supra, 175 Cal. App. 4th at 699.

For their part, Cross-Defendants have not complied with Section 128.7 as to the sanctions request in their opposition.